Ohio’s new medical marijuana law provides patients an affirmative defense against prosecution for marijuana possession but doesn’t say where patients can get their marijuana from.
COLUMBUS, Ohio — When Ohio’s medical marijuana law takes effect Sept. 8, people can possess and use the drug without going to jail.
But the new law doesn’t specify where people can get marijuana.
Lawmakers have said that until the state’s dispensaries are set up, residents can travel to Michigan or another legal state and bring marijuana back. But legal experts say doing so would violate state and federal laws, as well as a key provision of the federal government’s hands-off approach to regulating state medical marijuana programs.
So most people will likely buy marijuana through Ohio’s existing black market.
The law establishes an “affirmative defense” against prosecution for possessing marijuana and paraphernalia that would be legal under the law. That defense expires 60 days after the state begins accepting applications for patient registry identification cards, which is another several months away.
Until then, the defense applies only if the patient’s physician has certified, in writing, the following:
- That the patient has been diagnosed with a qualifying medical condition
- That the physician has gone over the risks and benefits to using medical marijuana.
- That the physician thinks the benefits of the patient using marijuana outweigh its risks.
And the marijuana in question must be acceptable under the law, which allows plant material, edibles, patches, oils and tinctures but prohibits smoking. That means smoking marijuana, possessing gummy bears and other edibles that would be attractive to children or growing your own marijuana would not be protected by the defense.
Sen. Dave Burke, a Marysville Republican who led the Senate’s efforts on the bill, said the law intentionally ignores where people can buy marijuana before dispensaries are set up because the State Board of Pharmacy will take some time setting up the parameters for what marijuana products can be sold here.
Doctors are unlikely to sign off on patient marijuana use before then, said John Hudak, who studies marijuana policy at the Washington D.C.-based Brookings Institution.
“Doctors should not assume that prior to the board of pharmacy regulations coming out that this system is up and running and fully functional,” Hudak said.
No medical marijuana for out-of-staters
Pennsylvania and Michigan have legalized medical marijuana. But Pennsylvania’s dispensaries won’t be set up for two years.
And it’s not clear whether Michigan dispensaries would sell to Ohio patients. Michigan law allows medical marijuana sales to people with patient ID cards issued in other states. But Ohio patient ID cards won’t be available for months.
Michigan attorney Barton Morris said a doctor’s recommendation obtained in anticipation of the affirmative defense might qualify as an acceptable replacement for an ID card. But he said that as well as all out-of-state cards are accepted at the discretion of each dispensary.
Driving to Colorado — also a suggestion floated by lawmakers — could be even more problematic. There is no route from Colorado to Ohio that only passes through legal marijuana states. And flying with cannabis is illegal.
Nebraska and Kansas law enforcement are notorious for stopping drivers entering from Colorado, which legalized recreational sales and use in 2012. Nebraska claimed Colorado’s legal market was burdening its law enforcement officers in a lawsuit that was tossed out by the U.S. Supreme Court.
“Those states are looking for it and they would gladly bust a parent and impound your car and fine you like crazy,” Hudak said.
Medical marijuana is legal in 25 states and the District of Columbia, but remains an illegal, Schedule I substance under the federal Controlled Substances Act.
The U.S. Department of Justice under President Obama said in 2009 it would not focus federal resources on prosecuting crimes that were legal in medical marijuana states. The policy was extended to states that have legalize recreational marijuana states in a 2013 memorandum signed by Deputy Attorney General James Cole.
The “Cole Memo” laid out eight priorities for enforcing federal marijuana laws. Among them, preventing diversion of marijuana from legal states to “other states.”
Hudak said encouraging bringing in marijuana from another state — even neighboring Michigan — is a clear violation of the Cole Memo.
“Ohio courts are not going to be reform-minded when drawing the lines on this issue,” Hudak said. “State courts oftentimes err on the side of the law enforcement than the patient advocacy side.”
Burke said he finds it hard to believe targeting Ohio patients would be a priority for federal officials.
“They are not going to bust a mother with a child coming from Colorado,” Burke said. “The medical marijuana law does not change enforcement.”
Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego, agreed with Burke. Kreit said the Cole Memo core concern was with people diverting large amounts of legal marijuana to sell in other states.
“I’m sure the federal government is aware that people are already not infrequently going into the states with legal recreational marijuana and bringing it back,” Kreit said. “Ohio’s affirmative defense is not going to be triggering their concern about enforcement.”
If patients can’t get medical marijuana from another state, where can they get it?
“Wherever they can find it available — any source is allowed,” Burke said.
That includes drug dealers selling marijuana illegally grown here or trafficked in from elsewhere. Burke said the law does not change enforcement of laws against that activity but was meant to help Ohio patients.
“It’s the paradox we’ve been working with the whole time,” Burke said. “With or without the bill, that segment of law is not being enforced.”
Ohio Fraternal Order of Police President Jay McDonald said people possessing small amounts of marijuana has not been a priority for Ohio law enforcement officers. McDonald, a Marion police officer working on a county-wide drug task force, said that won’t change but the medical marijuana law will present new problems for officers, such as identifying marijuana impaired drivers.
“Ohio police are going to be concerned with Ohio law and if people are following the rules,” McDonald said. “No one’s going to be looking to try to enforce every little nook and cranny of this deal.”